When the Legislature amended the Meyers-Milias-Brown Act (MMBA) in 2001, it gave PERB jurisdiction over the statute, but not over certain agencies, and not over “persons who are peace officers as defined in Section 830.1 of the Penal Code.” (Gov. Code Section 3511, emphasis added.)

In the more than 14 years since then, however, one lingering question has been whether Section 3511 precluded PERB from exercising jurisdiction over charges filed by or against labor unions representing units comprised of both Section 830.1 peace officers and either persons defined as “peace officers” under different sections of the Penal Code, such as 830.5, or civilian employees.

In 2013, PERB heard oral argument in Lompoc Peace Officers Association and City of Lompoc. In that case, which involved a mixed unit comprised of Section 830.1 peace officers and civilian employees, the Administrative Law Judge found that the City had imposed a wage reduction not reasonably encompassed within its last, best and final offer. He ordered that the City make the civilian employees whole, but excluded the peace officers from that remedy. Both the City and the Association appealed, and PERB granted oral argument on the issue of whether its remedial authority extended to Section 830.1 peace officers. PERB, however, never ruled on that issue because the parties settled, and PERB granted the parties’ request to withdraw their appeals.

PERB, however, has now spoken. In County of Santa Clara (2015), PERB clearly and unequivocally ruled that its authority includes jurisdiction over unfair practice charges filed by “employee organizations representing or seeking to represent units including persons who are peace officers.”

In Santa Clara, a dispute arose between Santa Clara County and its Correctional Peace Officers Association over a tuition reimbursement program. The Association, which represents a unit consisting of both Section 830.1 peace officers as well as non-Section 830.1 peace officers, claimed that the County had unilaterally changed the status quo of providing tuition reimbursement to members as authorized by the expired MOU and established past practice. The MOU provision on tuition reimbursement established a yearly amount to be available to the unit for each year of the MOU, with any unused amounts rolled-over to the next year. Once the MOU expired, however, any unused amounts were to revert to the County. Based on the clear and unambiguous language of the MOU, PERB’s Office of the General Counsel dismissed the unfair practice charge. The Association appealed, and the Board reversed the dismissal and ordered the issuance of a complaint.

Although neither party raised a jurisdictional argument, PERB addressed the issue at the outset of its analysis. In support of its claim that it had jurisdiction, PERB referred to two other cases in which it asserted jurisdiction over a mixed unit comprised of both civilian employees and “peace officers”: County of Calaveras (2012) and County of Yolo (2013). It is unclear, however, why PERB relied on those cases because neither case involved Section 830.1 peace officers. Instead, those cases dealt with persons who were peace officers as defined by Penal Code section 830.5, and thus, clearly within PERB’s jurisdiction.

As PERB explained, it never questioned its authority to entertain unfair practice charges filed by “exclusive representatives” of mixed units of peace officers and non-peace officers. Reading the MMBA’s statutory provisions together, the Board noted that Section 3511 “precludes jurisdiction only with respect to charges brought by peace officers, not employee organizations.” As support for its position, the Board cited other provisions in the MMBA which differentiated between natural persons and employee organizations or other entities. It noted that if the Legislature intended to prohibit PERB from investigating and remedying charges filed by employee organizations, it would have excluded both peace officers and entities that represent peace officers from PERB’s authority. Thus, the Board stated:

“[W]e make explicit PERB’s authority to hear charges… that are brought by employee organizations, including employee organizations representing or seeking to represent units including persons who are peace officers.”

After addressing the jurisdictional issue, the Board moved on to the substance of the charge. On the issue of whether the County’s conduct (i.e., the cessation of its tuition reimbursement program during ongoing negotiations for a successor MOU) constituted an unlawful unilateral change in policy, the Board noted that “affirmative defenses not raised at the [pleading] stage cannot provide the basis for dismissal, even if the pertinent facts are undisputed.” The Board concluded that because the County did not assert “waiver” or “consent by agreement” as an affirmative defense in its response to the unfair practice charge, PERB could not consider the defense. As the Board explained, while PERB regulations require that its agents assist the charging party to state a charge, they do not require that its agent consider affirmative defenses not raised by the respondent.

In support of that holding, the Board cited to Metropolitan Water District of Southern California (2009) (p. 4, fn. 4). But in Metropolitan, it does not appear that PERB required the Respondent to assert waiver. Rather, the Board determined the “charge failed to established that the District had a duty to bargain” because the undisputed facts sufficiently established waiver. The Board’s decision in County of Santa Clara, however, now seems to hold that even if the “facts” are clear on their face, as evidenced by the clear and unambiguous language in the MOU, PERB will not assume an affirmative defense if the respondent fails to raise it.

Note:

The Board’s decision in County of Santa Clara raises two interesting points. First, this decision makes clear, once and for all, that PERB will exercise jurisdiction over bargaining units comprised of both Section 830.1 peace officers and others. But it goes further by holding that the exclusion in Government Code section 3511 refers solely to “persons” and not “employee organizations.” Thus, this case suggests that PERB would assert jurisdiction in an unfair practice charge filed by an employee organization comprised solely of section 830.1 peace officers. Public agencies subject to the MMBA may find themselves facing an increased number of unfair practice charges as a result.

Second, when responding to unfair practice charges, public employers should make sure to assert any and all potential affirmative defenses. Do not assume that PERB will automatically dismiss a charge as untimely or without merit simply because the undisputed facts warrant that conclusion. In situations in which affirmative defenses apply, affirmative defenses will not be assumed if they are not raised in the response/position statement.

A number of California transit agencies, as well as cities and counties that operate and maintain transit systems, are in legal limbo over whether the Public Employees’ Pension Reform Act of 2013 (“PEPRA”) applies to mass transit employees. The State of California prevailed in its legal challenge against the United States Department of Labor (“DOL”), which threatened to withhold federal grants to agencies complying with the PEPRA. Under the plain language of the PEPRA, this should have put the issue to rest and agencies could rest assured that PEPRA applied to their mass transit employees. The DOL, however, has made seemingly contradictory statements to California’s public employers indicating that it may continue to adhere to its legal position that compliance with PEPRA is inconsistent with the collective bargaining rights of mass transit employees protected under the Urban Mass Transportation Act (“UMTA”) – often referred to as section 13(c) rights. To better understand where California transit agencies stand today, the following is a brief history of PERPA / UMTA conflict that has brought us to this point:

Under the UMTA, public agencies operating mass transit systems are eligible for federal grant funds to support operations and infrastructure. In accordance with section 13(c), financial assistance is conditioned on protections for transit employees under arrangements the Secretary of Labor concludes are “fair and equitable,” including a preservation of collective bargaining rights. The DOL must certify that a transit system has “fair and equitable” arrangements in place before the U.S. Department of Transportation can act on applications for grant funds.

PEPRA went into effect on January 1, 2013. Among its provisions, PEPRA establishes a lower pension formula for all “new members,” as defined by PEPRA, and requires “new members” to pay one-half of the normal cost of the pension benefit.

The DOL issued an administrative determination asserting that PEPRA was inconsistent with section 13(c)’s mandate to preserve pension benefits under existing collective bargaining agreements and mandate to ensure the continuation of collective bargaining rights. The DOL thus determined that PEPRA precluded it from providing 13(c) certification to California transit agencies subject to PEPRA. This resulted in a withholding of $1.6 billion dollars in federal aid to California agencies operating public transit systems.

On October 4, 2013, the State of California, and the Sacramento Regional Transit District (“SacRT”), filed a complaint against the DOL in the U.S. District Court for the Eastern District of California (“District Court”) for refusing to certify the California Department of Transportation and SacRT on the basis that PEPRA conflicted with section 13(c).

On October 4, 2013, Governor Brown approved urgency legislation, under Assembly Bill 1222 (extended by AB 1783), to specifically exempt specified transit employees from PEPRA until the District Court ruled that the United States Secretary of Labor erred in determining that the application of PEPRA precludes certification under the UMTA, or until January 1, 2016, whichever occurred sooner.

On December 30, 2014, the District Court determined that the DOL acted in excess of its authority in denying federal transit grants, and that the DOL’s determination that PEPRA interfered with collective bargaining rights was arbitrary and capricious. The court “remanded” the matter to the DOL for further proceedings “consistent with” its order.

On February 25, 2015, the California Public Employees’ Retirement System (“CalPERS”) issued a circular asserting that transit employees hired on or after January 1, 2013 would now be subject to PEPRA. CalPERS explained that the recent federal district court decision (State of California v. U.S. Dept. of Labor, D. Cal., Dec. 30, 2014, 2:13-CV-2069 KJM DAD) 2014 WL 740947) ended the AB 1222 transit worker exemption. CalPERS also clarified that transit employees appointed on or after January 1, 2013 through December 29, 2014 (i.e. after PEPRA, but prior to court’s decision), would retain their “classic” retirement benefits for that period of time.

On March 3, 2015, the DOL filed appeal in the Ninth Circuit Court of Appeals.

In late March / early April, 2015, the DOL sent letters to various California public employers, stating its opinion that it considered the AB 1222 PEPRA exemption to still be in effect, taking the position that the District Court’s decision did not determine that it had erred, but merely remanded the matter to the DOL. The DOL has stated it may continue to withhold transit funds from California agencies that comply with PEPRA.

On April 27, 2015, the DOL filed a motion to dismiss its appeal voluntarily. The State has opposed this motion on concerns that the DOL will strategically attempt to challenge the District Court’s order on remand, causing the need to re-litigate issues currently before the Court of Appeals.

In the interim, the DOL has issued various determinations with individual agencies, but has not announced any formal administrative direction. In some cases the DOL certified funds for the period during which the AB 1222 exemption was in effect, i.e. prior to January 1, 2015. In another instance, the DOL certified transit grants on condition that the agency restore pre-PEPRA bargaining rights “if” the DOL adheres to its prior legal position on remand, and if (assuming the DOL adheres to its position), the DOL’s position is not challenged – or is challenged but upheld after all appeals are finally exhausted or the time for filing appeals finally expires.

California transit agencies hang on the potentially-evolving position of the DOL, and there is a good deal of uncertainty as to whether the DOL will continue to adhere to its prior legal position that PEPRA precludes certification under section 13(c); whether the DOL will issue a new administrative decision subject to new judicial challenges; or perhaps, whether the DOL will issue a determination that is wholly consistent with the language of the District Court’s decision. LCW is watching this issue closely and will update employers as the matter progresses.

An officer in the City Police Department at which you are employed receives an award for commendable service. The Police Chief posts an announcement and his praise of the officer on the Police Department’s Facebook page. In the midst of the congratulatory posts from the public, two citizens post comments sharply criticizing the Department. You and your colleagues take this in stride. Then come harsh and insulting comments, strange ruminations about conspiracies and other planets, personal, anonymous attacks on members of the police force divulging supposed aspects of their personal life, descriptions of violent use of force incidents that apparently never occurred, and vitriolic attacks on individuals not even connected to the Department. What do you do? What can you do? A recent case has shed light on the government’s ability to regulate speech in connection with programs the government itself creates. It is important for free speech rules regarding the government’s use of social media.

On June 18, 2015, the United States Supreme Court issued a 5-4 decision in Walker v. Texas Division, Sons of Confederate Veterans, holding that specialty license plate designs approved and issued by the state of Texas constitute government speech. Walker involved a free speech challenge by the Texas Division of the Sons of Confederate Veterans (“SCV”) to a decision by the Texas Department of Motor Vehicles Board rejecting a specialty Texas license plate depicting a Confederate battle flag. The SCV argued that Texas had created a public forum of sorts in its system of issuing specialty plates, and that Texas had engaged in improper censorship and viewpoint discrimination by failing to approve the Confederate flag plate but approving most other types of plates. The U.S. Supreme Court in the Walker, however, found that the Texas license plate program did not create a “public forum,” but instead a system in which Texas itself was effectively “speaking” to the public through the license plate messages. The Supreme Court found this was demonstrated, among other ways, by the fact that the State evaluated and pre-approved the license plate designs submitted to it. Since it was the government that was speaking, the Supreme Court reasoned, the government was effectively free to pick and choose specialty plates as it saw fit. Thus, it was free to reject the Confederate battle flag plate, without offending constitutional free speech principles.

As many commentators have pointed out, the Walker case has broad application to public entities and their ability to regulate communications in particular areas. Indeed, Walker has very significant implications for the ability of agencies to moderate commentary on their social media sites.

Cities, special districts, police departments, and other local government agencies are increasingly augmenting their presence on-line by hosting social media activities. These agencies either maintain a website in which they post on certain topics, and the public is provided a space to provide comments, or agencies can themselves maintain a Facebook page or Twitter account, for example, on which the public can participate by way of commentary.

What First Amendment issues must a government agency address is establishing its own social media site?

The First Amendment free speech clause, a central part of the Bill of Rights, forbids the government from engaging in unlawful censorship. Thus, subject to narrow exceptions, a city cannot prohibit certain views from being expressed in one of its public parks, for example, or favor some types of content over others in any venue created as a forum for public expression on any topics.

The following describes forum analysis in a nutshell. Determining what type of “forum” is involved determines to what extent the government can regulate speech in that particular venue. There are thought to be four types of forums: traditional public forums (like a city park), designated public forums (e.g., a government space opened up to be used for expression the same way a city park is), limited public forums (e.g., some government employee message boards), and non-public forums (government-owned spaces not used for expressive purposes, like warehouses or offices). U.S. Supreme Court precedent has established that it is difficult for the government to restrict speech in traditional or designated public forums, but easier on balance to restrict speech in limited public forums and non-public forums. Even in these latter types of forums, however, a speech restriction must be reasonable in the eyes of the court, and “viewpoint-neutral,” meaning in general terms that the government cannot suppress some viewpoints but allow others on a particular topic.

If a social media site maintained by the government is deemed to be a designated public forum, for example, then someone whose comment or post is deleted by that agency based on the viewpoint it expresses could have a First Amendment claim that the government is censoring the speech. Indeed, in 2012, the Honolulu Police Department faced a challenge to its decision to remove two local residents’ comments from its Department Facebook page. The residents argued that the Police Department had created a public forum in its maintenance of the Facebook page, and that removal of their posts constituted illegal censorship. The Department’s guidelines, described the page as “a forum open to the public,” yet the Department allegedly removed the residents’ posts simply because they were critical of the Department. This Honolulu Police Department case eventually settled with a payment by the Department of attorneys’ fees, and an agreement to revise its social media policies.

The primary approach an agency has in this scenario is to have a policy, carefully vetted by legal counsel, that sets forth what comments are authorized and what are not. For example, the policy can specify that obscene, defamatory, and other similar types of comments are not permitted. The policy can also specify that comments have to relate to the matter originally posted (in the example above, the officer’s promotion). But that policy itself presumably must be designed to satisfy the stringent demands of forum analysis, including that the policy be “viewpoint-neutral,” and the agency must be able to justify its restrictions on certain types of comments in a way that will satisfy forum analysis requirements.

The 2015 Walker decision, described above, is important because it offers agencies a possible way out of the strictures of forum analysis in the maintenance of government social media accounts. With government speech, the government has significant latitude in the message it conveys. If what is at issue is not a forum, but instead government speech, the government has substantial authority to limit the message being conveyed. Government speech is an alternative way of viewing the scenario: it asks the Court to view an agency’s social media site not as the hosting of speech by members of the public (subject to certain rules), but instead the government itself speaking, by effectively selecting comments/posts to offer to the public (and choosing not to offer others).

How does a government agency persuade a Court to view its social media site as government speech and not a public forum of some type?

This requires a closer look at the U.S. Supreme Court’s reasoning in the Walker case, and the features of the Texas license plate program that led the Court to conclude it involved government speech.

In Walker, the Supreme Court relied on three points to arrive at its conclusion.

Historically, the Court found, license plates have communicated messages from states with various slogans and images. The Texas license plates were no different, as the state has a number of specialty plates depicting everything from support for the Girl Scouts to a favorite college.

The Court determined that Texas license plates “are often closely identified in the public mind” with the State. The Court analyzed the Texas Transportation Code’s sections concerning use and selection of license plates. The license plates have a number of items connecting them to the state of Texas, including the word “TEXAS” at the top of the plate, the fact that all vehicle owners in the state must display a license plate issued by the state, that the Texas Vehicle Code provides that the State owns the license plate designs, even if designed by a private individual, and that there are specific procedures that must be followed when disposing of the plates. The Court compared the Texas license plates to a government ID, on which governments restrict messages conveyed.

The State maintains direct control over the messages conveyed on the specialty plates by requiring approval of any and all specialty plates.

A government social media site can satisfy many of these considerations that led the Walker Court to view the system as government speech. First, historically, there is less of a track record of social media conveying State messages, just because social media is a relatively new phenomenon. But if an agency has consistently and for many years used social media to convey it own messages, a Court may find this consideration from Walker satisfied. Second, in the same way a government entity’s on-line and social media presence may be identified “in the public mind” with that agency. Finally, if the agency already does use its social media guidelines applied to public comments, or other considerations, to select what messages it posts, then this can be used to satisfy the third consideration in Walker, i.e., that the agency maintain direct control over the messages conveyed.

As this issue continues to arise, courts analyzing whether a public entity can selectively choose comments posted on its social media page will be the next frontier in free speech analysis. Carefully structuring the policies applicable to government social media, and consulting with counsel, are key to putting into place a program that serves the government agency and the public and complies with the First Amendment.

In 2013, we reported on the “Black Swan” lawsuit, a case brought by unpaid interns who worked on the film and claimed that they were employees entitled to regular pay and overtime wages under the FLSA. The trial court agreed that the interns were employees of the studio, after it applied the “totality of the circumstances” test which weighed the six-factors set forth in the Department of Labor’s (“DOL”) Fact Sheet #71 regarding Internship Programs under the FLSA.

The studio appealed that decision and, on July 2, 2015, the United States Court of Appeals, Second Circuit, overruled the trial court. In its opinion, the Court adopted the “primary benefits test,” stating that the DOL test was unpersuasive and declined to defer to it. The Court derided the DOL test for being too rigid and too old to apply to modern workplaces and internships.

The “primary benefits test” focuses on whether the intern or the employer is the primary beneficiary of the relationship. Under this test, if the intern primarily benefits, then the FLSA does not apply, but if the employer does, then the intern is actually an employee entitled to regular wages and overtime under the FLSA. To aid courts in deciding whether the intern or the employer is the primary beneficiary, the Court set forth a list of non-exhaustive factors to consider:

Whether there is any expectation of compensation

Whether the internship provides training similar to that given in educational environments

The extent to which the internship is tied to the intern’s formal education program (e.g. integrated coursework or academic credit)

The extent to which the internship corresponds to the academic calendar

The extent to which the duration of the internship is limited to a period that provides the intern with beneficial learning

The extent to which the intern’s work complements rather than displaces paid employees

Whether there is any expectation of being hired as an employee after the internship concludes

The Court stated that these factors should be weighed and balanced against one another and that no one factor is dispositive. The Court then remanded the case back to the trial court to apply its test.

While the Court’s test expressly applies to for-profit employers, this case provides all employers, even public agencies and non-profit organizations, with some guidance on what constitutes an unpaid intern under the FLSA. Other courts, such as the Sixth and Eighth Circuit Court of Appeals, have also been finding in favor of the primary benefits test rather than the DOL’s more rigid approach. However, until the Department of Labor or the Supreme Court weigh in, our clients should continue to work with their attorneys to review their use of interns in order to minimize any potential liability.

UPDATE – Following up on our June 26, 2015 Special Bulletin, which outlined Assembly Bill 304, the proposed clean-up legislation for California’s Healthy Workplaces, Healthy Families Act of 2014 (“Paid Sick Leave Law” or “AB 1522”), this urgency legislation passed the California Senate on July 13, 2015, with a vote of 39-0 and was signed into law by Governor Brown on the same day and is now effective.

Below is a summary of the changes that AB 304 makes to the Paid Sick Leave Law.

SUMMARY OF AB 304 AMENDMENTS TO THE PAID SICK LEAVE LAW

AB 304 amends the Paid Sick Leave Law as follows:

Public Agency Retired Annuitants Are Excluded From the Definition of “Employee” (Labor Code Section 245.5(a))

AB 304 expressly excludes CalPERS and ’37 Act retired annuitants from being eligible to receive paid sick leave. Previously, it was unclear whether the Public Employees’ Pension Reform Act of 2013 (“PEPRA”) prohibitions that precluded retired annuitants from receiving fringe benefits such as paid sick leave preempted such sick leave benefits provided by the Paid Sick Leave Law. With AB 304 adding in this express exclusion for retired annuitants, employers will be able to confidently exclude retired annuitants from the benefits of the Paid Sick Leave law.

Clarifies the Paid Sick Leave Law Applies to an Employee Who Works In California “For the Same Employer” for 30 or More Days Within a Year (Labor Code Section 246(a))

The Paid Sick Leave law allows employers to set a 30-day waiting period before employees are entitled to paid sick leave. Prior to AB 304, it was unclear how employers were supposed to measure this 30-day eligibility period for employees who may have worked with other employers previously within a year.

AB 304 amends Labor Code section 246(a) to clarify that the 30-day eligibility period applies to time worked “with the same employer.” This will mean that the 30-day eligibility period begins for a new employee with the first date of employment with a specific employer.

In addition to the standard 1 hour of paid sick leave for every 30 hours worked accrual method, AB 304 now adds two additional alternative accrual methods under Labor Code section 246(b)(3)-(4) to allow alternative accrual methods that are not necessarily tied to hours worked, but yet accrued on a regular basis:

“(3) An employer may use a different accrual method, other than providing one hour per every 30 hours worked, provided that the accrual is on a regular basis so that an employee has no less than 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment or each calendar year, or in each 12-month period.

(4) An employer may satisfy the accrual requirements of this section by providing not less than 24 hours or three days of paid sick leave that is available to the employee to use by the completion of his or her 120th calendar day of employment.”

Under the new accrual method in Labor Code section 246(b)(3), an employer can allow an employee to accrue paid sick on a regular basis through an accrual rate other than hours worked (e.g., per week, per pay period, per month, etc.) so long as the employee has accrued no less than 24 hours of accrued sick leave by the 120th calendar day of employment, or each calendar year, or applicable 12-month period. The new accrual method in Labor Code section 246(b)(4) appears to allow an alternative method for new employees that would allow an employer to provide no less than 24 hours or 3 days of paid sick leave for use by the completion of the 120th calendar day of employment.

Although these new accrual methods are now a part of the Paid Sick Leave Law following the passage of AB 304, there has been very little analysis on their application to date and we anticipate further clarification from the Labor Commissioner in the near future. Employers are cautioned to be careful about applying such alternative accrual methods absent further clarification from the Labor Commissioner.

Clarifies That Providing the “Full Amount Of Leave” Under the Frontloading or Lump-Sum Method Means the Employer Must Provide Three Days or 24 Hours at the Beginning of Each Year, Calendar Year, Year of Employment, or 12-Month Basis. (Labor Code Section 246(d))

Labor Code section 246(d) discusses the ability for an employer to frontload the “full amount of leave” to an employee at the beginning of each year to avoid having to deal with accruals or the potential of paid sick leave carryover from year to year. Prior to AB 304, it was not clear what constituted the “full amount of leave” or the measurement of a “year.” AB 304 amended Labor Code section 246(d) to provide: “The term ‘full amount of leave’ means three days or 24 hours.” As a result, an employer only needs to frontload 3 days or 24 hours of paid sick leave to satisfy this method of compliance. AB 304 will also clarify that providing paid sick leave at the beginning of the year means providing it at the beginning of each calendar year, year of employment, or 12-month basis as determined by the employer.

Labor Code section 246(e) is the provision of the Paid Sick Leave Law that provides that employers who already have sick leave/PTO policies in effect need not provide any additional paid sick leave under AB 1522 if their current polices make paid sick leave available for the same purposes and conditions as AB 1522. Section 246(e) provides two options for compliance:

The first option merely provides that the existing sick leave/PTO policy satisfy the accrual, carry over, and use requirements of the Paid Sick Leave Law; or

For the second option, AB 304 revised Labor Code section 246(e)(2) to now include a “grandfather clause” for existing paid sick leave/PTO policies provided to a class of employees that were in effectprior to January 1, 2015. Under this option, the Paid Sick Leave Law allows such grandfathered policies to continue going forward for both current and new employees in the class covered by such policies where their accrual method is different than one hour per 30 hours worked and instead provides at least one day or eight hours of paid sick leave/PTO within three months of employment and the employee was eligible to earn at least three days or 24 hours of paid sick leave/PTO within nine months of employment. Any changes to a grandfathered paid sick leave/PTO policy that lowers employee accruals will lose the grandfathered status and all other AB 1522 accrual requirements will then apply going forward.

The application of this new “grandfathered paid sick leave/PTO policy” clause will depend on the specific terms and conditions of any paid sick leave/PTO policies in effect prior to January 1, 2015. We strongly recommend working with legal counsel to review its applicability.

AB 304 also provides much needed clarification regarding an employer’s obligation to reinstate paid sick leave to an employee who is rehired within 12-months of separation by amending Labor Code section 246(f)(2) in two ways:

This section is amended to clarify that the reinstatement of paid sick leave upon rehiring would be “subject to the use and accrual limitations set forth in this section.” The significance of this amended language is that an employer who provides a more generous paid sick leave benefit to its employees is not necessarily required to reinstate all unused sick leave accruals upon rehire. Rather, an employer would only have to reinstate up to the accrual cap of 6 days or 48 hours of unused accrued paid sick leave for an employee who is rehired within 12 months of a separation of employment.

Example: Acme Employer allows employees to accrue up to 100 hours of paid sick leave. Employee John Doe works for Acme and accrues 100 hours of paid sick leave. John then separates from his employment with Acme and Acme rehires him within one year from his date of separation. Upon John’s rehire, Acme is only required to reinstate 48 hours or 6 days of his paid sick leave. Acme does not need to reinstate the full 100 hours of paid sick leave John had upon his separation of employment.

This section is also amended to confirm that if an employer is not obligated to restore any sick leave or PTO to an employee who was rehired within 12 months of a separation of employment if such sick leave/PTO was cashed out and no longer exists.

Adds That if an Employer Provides Unlimited Paid Sick Leave or Unlimited PTO, the Employer May Provide Written Notice That Such Leave Is “Unlimited.” (Labor Code Section 246(h))

Pursuant to Labor Code section 246(h), employers are required to provide written notice of the amount of paid sick leave an employee has available on either the employee’s itemized wage statement or in a separate writing provided on the designated pay date with the employee’s payment of wages. For those employers that have policies which provide “unlimited” amounts of paid sick leave or PTO to employees, it was not clear how this requirement would be satisfied.

AB 304 amended Section 246(h) to now allow an employer with an unlimited paid sick leave or PTO policy to simply indicate the leave balance as “unlimited” on an itemized wage statement or written notice provided to the employee each pay period.

Clarifies How to Calculate the Rate of Pay for Paid Sick Leave Provided to Employees. (Labor Code Section 246(k))

AB 304 amended Labor Code section 246(k) to clarify how an employer will calculate the rate of pay for paid sick leave provided to nonexempt and overtime exempt employees. For nonexempt employees, Section 246(k) was amended to now provide two methods to choose from in calculating paid sick time:

Calculating paid sick time for nonexempt employees in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time. This method is more appropriate for nonexempt employees who are paid a regular hourly wage.

Calculating paid sick time by dividing the employee’s total wages, not including overtime pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment. This method can be used to determine the paid sick leave rate of pay for nonexempt employees who have varying rates of pay, are paid on a salaried basis, or are paid on a piecemeal or commission basis.

For overtime exempt employees, Section 246(k) was amended to note that paid sick leave wages should be calculated in the same manner as the employer calculates wages for other forms of paid leave time.

Provides That an Employer Is Not Obligated to Inquire Into or Record the Purpose for Which an Employee Uses Paid Leave or Paid Time Off. (Labor Code Section 247.5(b))

AB 304 adds a new Subsection (b) to Section 247.5 to clarify that an employer is not required to ask about or record the purposes for which an employee uses paid sick leave or paid time off. We believe that this addition to the law is to address the concern that if an employer provides an unrestricted PTO policy that could be used for Paid Sick Leave Law purposes (among any other purpose), an employer does not have to track which PTO days are for Paid Sick Leave Law purposes or not.

However, if an employer does not have an unrestricted PTO policy in place and is providing a more traditional paid sick leave policy, this revision to the law does nothing to change the right of an employer to require an employee to confirm that the use of paid sick leave meets one of the purposes provided for in the law. Employers with more generous paid sick leave policies should also exercise this right to seek confirmation of the purpose for the paid sick leave to better track compliance with California’s Kin Care law (Labor Code sections 233-234), which requires employers to allow employees to use up to one-half of their annual accrued sick leave or PTO to care for a parent, child, spouse, or registered domestic partner.

CONCLUSION

While the Paid Sick Leave Law still raises a number of questions concerning its interpretation, AB 304 does help clarify some of these issues as employers continue working to implement this new law. Nonetheless, there still remain some areas of uncertainty regarding the application of the Paid Sick Leave Law. LCW will therefore continue to provide updates on the Paid Sick Leave Law and its interpretation as they become available.

If you have any questions about this issue, please contact our Los Angeles, San Francisco, Fresno, Sacramento, or San Diego office.

To receive these Special Bulletins on the day they are released, please send your email address to info@lcwlegal.com.

Both the Meyers-Milias-Brown Act (MMBA) and PERB regulations recognize the right of an employee organization to request factfinding following a declaration of impasse. That right, however, is not absolute: Government Code section 3505.4(a) and PERB regulation 32802(a)(1) mandate that such a request be made “not sooner than 30 days, but not more than 45 days, following the appointment or selection of a mediator.” In Lassen County In-Home Supportive Services Public Authority (2015), PERB held that a union forfeits its right to request factfinding when it fails to request factfinding within that statutory window period.

In Lassen the parties were negotiating an initial Memorandum of Understanding (MOU). On February 2nd (all dates referenced are in 2015), the Union’s negotiator notified the Authority that the Union rejected the Authority’s last, best, and final offer, and requested that the parties mediate their dispute. The Authority agreed, and requested that the State Mediation and Conciliation Service appoint a mediator. On February 5th, a mediator notified the parties of his appointment and inquired about available dates. By the following day, the parties and the mediator had confirmed the mediation for March 26th.

On March 13th, however, the mediator informed the parties that he could not conduct the mediation on the scheduled date. He advised them that he would attempt to find a replacement for the scheduled date, but also requested that they provide him their availability on his other available dates in case he could not find a replacement mediator for March 26th. On March 15th, the mediator notified the parties that he was unable to find a replacement and, again asked them to select alternate available dates for him to conduct the mediation. The mediation was confirmed for May 19th.

On April 17th, the Union filed its factfinding request with PERB. The Authority opposed this request on the grounds that it was untimely. Specifically, the Authority argued that since the mediator was appointed on February 5th, the Union had to file its factfinding request during the 15-day window period that was 30 to 45 days after the mediator’s appointment.

The Office of the General Counsel (OGC) granted the factfinding request, and determined that when the mediator informed the parties on March 13th that he could not conduct the mediation, as originally scheduled, the mediator’s appointment date was rescinded. In following that determination, the OGC ruled that the mediator’s March 15th request of the parties for potential alternative dates marked a new appointment date that essentially restarted the clock for submitting a factfinding request. Therefore, the OGC ruled that the factfinding request was timely, and ordered the parties to select their respective factfinding panel member.

The Authority appealed the OGC’s determination, and PERB reversed. PERB ruled that since the mediator never indicated to the parties that he would not serve as the mediator, but instead conveyed his intent to function as the mediator by requesting new dates, the original February 5th mediator appointment date remained unchanged. Accordingly, the Union’s April 17th factfinding request was untimely, as it was made outside of the statutory parameters. In so holding, PERB reiterated that once a mediator is appointed, an employee organization must file its factfinding request within 30 to 45 days after the mediator’s appointment. So long as the mediator’s identity does not change, the statutory window period applies, even if the parties encounter some difficulties or delays in the mediation scheduling process.

The lesson from this decision is that once a mediator is appointed, public employers should monitor the calendar closely. PERB will not toll the statutory deadline for mediation scheduling problems or an employer’s failure to respond to the mediation request. Thus, depending on the nature of negotiations and an evaluation of what may or may not be gained by utilizing the factfinding process, employers may be able to avoid fact finding if the union’s request for fact finding is untimely.

We are excited to continue our video series – Tips from the Table. In these monthly videos, members of LCW’s Labor Relations and Negotiations Services practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.

On Tuesday, June 30, 2015, Governor Brown signed into law a bill designed to require that California schoolchildren are fully vaccinated, regardless of their parents’ personal or religious beliefs. The bill applies to children enrolled in public or private day care, public school districts, and private schools. The law takes effect January 1, 2016, but its provisions will not be implemented until July 1, 2016.

Existing Law

Currently, public schools are prohibited from admitting children who are unvaccinated against specific diseases unless they are exempt for medical reasons or personal beliefs of their parents. For an exemption to take effect, parents must receive information from a health care provider about the benefits and risks of immunizations and sign an affidavit attesting to their personal beliefs. The form and affidavit provided by the California Department of Public Health may be accessed at: http://omsd.omsd.k12.ca.us/departments/lss/health/Health%20Forms/Forms/AllItems.aspx.

New Law

SB 277 largely eliminates the religious and personal beliefs exemptions. California now becomes only the third state (along with Mississippi and West Virginia) that does not allow a religious exemption. It is one of 32 states that do not allow some type of philosophic exemption. To address concerns about student’s access to education, which in California is a constitutional right, the bill exempts pupils in a home-based private school and students enrolled in an independent study program who do not receive classroom-based instruction. The new law also does not prohibit a student who qualifies for an individualized education program (“IEP”) from accessing special education and related services required by his or her IEP. It also provides a limited exception for children who, prior to January 1, 2016, submitted a valid personal belief affidavit. Those students may continue attending public or private school until, beginning July 1, 2016, they have enrolled in the next “grade span.”

Q: How does SB 277 affect current students with personal belief affidavits?

A: A current student with a personal belief affidavit filed prior to January 1, 2016, will be allowed to remain enrolled in school without being fully immunized until he or she begins the next grade span. Upon beginning the next grade span, the student’s personal belief affidavit will no longer be valid and he or she will need to be fully immunized.

Q: As of July 1, 2016, may schools choose to allow students to begin the new school year even if they had not submitted a personal belief affidavit before January 1, 2016?

A: No. As of July 1, 2016, public schools must comply with the new law. Schools cannot accept personal belief affidavits filed on or after January 1, 2016.

Q: May schools choose to require parents to vaccinate their children before the law takes effect or at times other than a change in grade span even if a valid personal belief affidavit is on file?

A: Probably not. The statutory language and legislative intent likely would not favor that approach.

Q: When must students who are not exempt for health reasons be vaccinated?

A: So long as a student has a valid personal belief affidavit on file before January 1, 2016, the vaccinations must only be up-to-date when a student begins a new grade span. For example, if a fifth-grade student has a valid personal belief affidavit on file, he or she would not need to provide evidence of vaccinations until seventh grade. If a student in the seventh grade has a valid personal belief exemption on file, that student is exempt from the new vaccination requirements through the 12th grade.

Students who do not have a valid personal belief affidavit on file before January 1, 2016 must be fully vaccinated for the vaccinations required at their age level prior to beginning the new school year.

Q: What if a student with a valid personal belief affidavit on file enrolls at a new school or in a new school district? For example, what if a seventh-grade student started at a new high school in ninth grade?

A: A seventh grade student who has a personal belief affidavit on file before January 1, 2016 and who starts at a new high school in ninth grade would not be starting a new grade span and would still be covered by the personal belief affidavit through 12th grade. However, students who transfer to or start at a new school at a time that coincides with a change in grade span must be fully immunized prior to the beginning of the school year. For example, a personal belief affidavit for a sixth grade student will no longer be valid when the student transfers to a school in the seventh grade and the student will need to be fully immunized prior to admission into the seventh grade.

In regards to transferring between school districts within California, the SB 277 provides that a student who has submitted an affidavit for at a private or public elementary or secondary school, day care center, nursery school or other child care institution will be allowed to enroll in “any” private or public elementary or secondary school or other child care institution “within the state until the pupil enrolls in the next grade span.” Absent further guidance, we interpret this to mean that if a student with a personal exemption affidavit on file in one school district moves to another school district, that personal exemption affidavit will be valid in the new school district.

For example, the parents of a second grade student who attends District A filed a personal belief exemption before the student entered kindergarten back in 2013. On July 1, 2016, right before the student is supposed to enter the 4th grade, the student’s family moves to a home located in District B’s boundaries. District B must honor the student’s personal belief affidavit until he enters the 7th grade.

Q: What if a doctor provides a medical exception for a student but the school does not believe the doctor?

A: SB 277 does not provide guidance regarding challenging the validity of a licensed physician’s written statement providing that the child’s medical condition or medical circumstances are such that immunization is not considered safe. Presumably the Department of Public Health will issue guidance.

Q: Does the law affect special education rights?

A: No. SB 277 provides that the new law does not prohibit a student who qualifies for an IEP from accessing any special education and related services required by his or her IEP.

The statutory language creates a special exemption for students with IEPs. For example, a student with an IEP entering the 7th grade, who does not have a medical exemption affidavit and is not fully vaccinated after July 1, 2016, cannot be excluded from any classroom instruction if the instruction is part of his or her IEP. Thus, if that student is in a regular classroom for 90% of the school day, but in a special education classroom for the remaining 10%, the District cannot exclude the student from either classroom.

An argument can be made, however that a special exemption for students with IEPs runs counter to SB 277’s legislative intent in that it permits unvaccinated students to enter classrooms and place other students at risk. Such a risk is likely heightened when students with IEPs enter a classroom with other special needs students who may have weakened immunized systems due to their own disabilities.

The creation of an exemption for special needs students with IEPs, however, makes sense from a legal standpoint given that federal law requires school districts to provide qualified students with IEPs and does not include any immunization exemptions. The legislature likely included this exemption so that SB 277 does not conflict with federally mandated requirements.

The Department of Public Health has indicated that it will issue further guidance on SB 277. Until the Department of Public Health issues further guidance, it is our recommendation that Districts do not deny any IEP services to qualified students.

Q: What if a child has not been vaccinated and the school believes he or she has been exposed to a disease covered by the vaccination laws?

A: A school may temporarily exclude the student from school until the local health officer is satisfied that the child is no longer a risk of developing or transmitting the disease. (Health and Safety Code section 120370).

Q: Does the law affect adults? For example, can schools require teachers to be vaccinated?

A: No. The law only affects children. There are other laws that cover adults in the health care and other industries, but teachers and others who work at schools are not covered by this law. Requiring school employees to be vaccinated may expose schools to claims of invasion of privacy, disability discrimination, and other claims.

Q: Will this law be challenged?

A: Opponents of SB 277 have vowed to contest it in court and to overturn it by referendum. Absent a court order or new law, SB 277 will take effect January 1, 2016 and need to be implemented as of July 1, 2016.

On June 30, 2015, the Supreme Court of the United States agreed to hear an appeal in Friedrichs v. California Teachers Association to answer the question of whether compulsory “agency shop” fees violate the First Amendment. An “agency shop” arrangement requires non-union member employees to pay compulsory fees as a condition of employment even if the employees decide not to join the union. Currently, approximately twenty-five (25) states provide its teachers and other workers with the choice of whether or not to pay union fees.

The California Government Code provides that a union may become the exclusive bargaining unit representative for public school employees by certifying that a majority of the employees in the unit wish to be represented by the union. (Gov. Code, section 3544, subd. (a).) After becoming the exclusive bargaining unit, the union may establish an “agency shop” arrangement whereby all employees “shall, as a condition of continued employment, be required either to join the recognized employee organization or pay the fair share service fee.” (Gov. Code, section 3546, subd. (a).) However, the agency fees must be limited to activities “germane” to collective bargaining. (Gov. Code, section 3546, subd. (b).) California law requires unions to estimate the portion of expenses that do not fall into these germane activities, or non-chargeable fees, and send a notice to non-members setting forth the non-chargeable fees to which non-members may opt-out by requesting a rebate or fee-reduction for that year. (Gov. Code section 3546, subd. (a); Cal. Code Regs., tit. 8, section 32992, subd. (a).)

Rebecca Friedrichs, a California teacher, along with her co-plaintiffs and appellants, represented by the Center for Individual Rights, opted out of union membership. They filed a suit against their local unions, the National Education Association, and the California Teachers’ Association arguing that compulsory union fees violate their rights to freedom of speech and association under the First and Fourteenth Amendments of the U.S. Constitution. They further argue that the “opt-out” procedure to receive non-chargeable fee rebates (as opposed to an opt-in procedure where the non-union members affirmatively agree to pay these non-chargeable fees) violates these same rights. They contend these procedures take away their rights to decide whether to join and pay dues to an organization that purports to speak on their behalf.

In asking the Court to decide whether their First Amendment rights are violated under the current law, plaintiffs ask the Supreme Court to overrule its 1977 decision in Abood v. Detroit Board of Education. Abood held that (1) insofar as service fees were used to finance expenditures by the union for collective bargaining, contract administration, and grievance purposes, agency shop clauses in bargaining agreements were valid and (2) First Amendment principles prohibited unions and boards of education from requiring any teacher to contribute to support an ideological cause the employee might oppose, as a condition of employment. However, the Supreme Court deferred determining whether the Abood unions violated the First and Fourteenth Amendments because the union had instituted an internal policy which permitted dissenters not to pay dues for certain political activities. The Supreme Court thus rejected the argument that the only funds unions could require non-members to pay were those funds that non-union members affirmatively consented to pay.

The Federal trial court that first heard Friedrichs upheld current agency shop fee laws under Abood and other Ninth Circuit Court of Appeals precedent, which held that the First Amendment does not require an “opt in” procedure for non-union members to pay equal fees as union members. However, the District Court did not engage in an in-depth discussion of plaintiffs’ claims. The trial court simply determined that these prior cases foreclosed plaintiffs’ claims. On appeal, the Ninth Circuit found that the plaintiffs’ claims were foreclosed under current Supreme Court and Ninth Circuit precedent and did not go into a discussion of the merits of the claims.

That the U.S. Supreme Court granted review to hear arguments despite Abood, raises doubt as to its validity. A Supreme Court decision reversing the Ninth Circuit’s decision could destabilize unions; union members could use threats of opting out of union membership as a way to influence which internal grievances the union supports; and membership and revenues could decline.

The Supreme Court will likely hear oral arguments in the Fall of 2015 and is not likely to issue a decision in Friedrichs v. California Teachers Association until late June of 2016. We will continue to monitor this case and update you as it proceeds.

Under Title VII and the Fair Employment and Housing Act (“FEHA”), the employer has an affirmative obligation to take all reasonable steps necessary to prevent harassment, discrimination, or retaliation. In order to comply with this obligation, employers must investigate all complaints of harassment, discrimination, or retaliation. If an employer receives a complaint, failing to investigate at all or failing to conduct an appropriate workplace investigation could lead to liability on a failure to prevent harassment claim. Importantly, the Department of Fair Employment and Housing, the agency which enforces the FEHA, may prosecute an alleged failure to investigate as an independent violation, even where there is no legally actionable claim of harassment. An employer’s ability to defend its position that it has taken all reasonable steps to prevent harassment will depend heavily on the quality of the underlying investigation. For these reasons, it is imperative that employers:

Promptly and thoroughly investigate all claims of harassment, discrimination, or retaliation.

Document the investigation. This includes documenting the methodology the investigator used during the investigation, the investigator’s factual findings, credibility determinations, and any conclusions reached.

Take prompt and effective remedial action if warranted.

The sufficiency, thoroughness, and fairness of an employer’s workplace investigation are very commonly challenged in subsequent litigation. Failure to take any of the three steps above could significantly compromise an employer’s ability to defend itself on a failure to prevent harassment claim.

Prompt and Thorough Investigation

The investigator chosen should be impartial and well-trained in workplace investigations and follow all the employer’s policies and procedures to ensure an appropriate and fair investigation.

While most employers are aware of the obligation to investigate harassment claims, one common pitfall is failing to initiate or complete an investigation in a timely fashion. The investigation should ideally start within a matter of days of the receipt of the complaint (if one is filed) or of when the employer otherwise becomes aware of possible harassment or other alleged misconduct. If an investigation is delayed, then memories may fade, evidence may disappear, and the employer may be accused of failing to take all reasonable steps to prevent harassment.

Sometimes an employer may start the investigation promptly, but not complete the investigation in a reasonable amount of time. This could happen for any number of reasons including for example, witness unavailability, a change in HR staff, or change of an outside investigator that delays the completion of the investigation.

How long an investigation should take is a fact-driven analysis and can vary greatly depending on many things, including the nature and extent of the claims being investigated, and the number of subjects, witnesses, and documents involved. The important thing is that the employer should be mindful of the duty to initiate and complete the investigation promptly, monitor an investigation’s progress, and work towards expeditiously completing the investigation. For example, if a staff member in charge of conducting investigations leaves the employer on short notice, the status of his or her open investigations should be reviewed and reassigned immediately and not allowed to languish unattended. If there are specific reasons for delay out of the employer’s control, such as unavailability of witnesses, those reasons should be well-documented so that they may be explained later if the sufficiency or promptness of the investigation is challenged in subsequent litigation.

Document the Investigation

The investigator should provide a written report on the investigation. The report should include all documents reviewed, all witnesses interviewed, all credibility determinations made, and all factual findings and conclusions reached by the investigator.

If the investigator fails to interview key witnesses or review key documents, or if the report fails to identify the witnesses and documents the investigator considered in reaching his or her conclusions, then the thoroughness and fairness of the investigation may be compromised.

Prompt and Effective Remedial Action

Finally, once the investigation is complete, if the investigation findings reveal that harassment in violation of the employer’s policy occurred, the employer must take corrective action that is reasonably calculated to end the current harassment, and to prevent future harassment of its employees. Appropriate corrective disciplinary action against the offending employee is always required. Keep in mind that when imposing discipline on public employees, the employer must follow appropriate statutory, regulatory, or collectively-bargained procedures. Otherwise, the employer could be liable to the disciplined public employee.

Case law, as well as my experience as an employment attorney, has shown that employers who follow the three steps above are much more likely to successfully defend against a failure to prevent harassment claim.

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Liebert Cassidy Whitmore is a full service employment and labor relations law firm providing expert consultation, representation, litigation, negotiation and investigation services to public agency management... More

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